Upholding Human Rights in Europe During the Pandemic
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BRIEFING Upholding human rights in Europe during the pandemic SUMMARY The severe coronavirus outbreak has forced governments across the world to resort to drastic measures in order to slow down the spread of the virus and prevent a public health crisis. As elsewhere, these emergency measures taken in Europe have affected all aspects of societal life and profoundly impacted people's personal freedoms and individual rights, as enshrined in the European Convention on Human Rights (ECHR). Although certain human rights can be suspended in situations of emergency, human rights conventions, such as the ECHR, continue to apply even then. In fact, many human rights instruments provide for such situations and contain dedicated 'emergency clauses' that give governments additional flexibility to address crises. Indeed, within the ECHR framework, Article 15 is one such clause that allows Council of Europe (CoE) member states to temporarily diverge from their ordinary convention obligations to resolve an emergency, provided certain conditions are met. During the coronavirus pandemic, derogation clauses such as Article 15 of the ECHR, have gained particular importance, as so far 10 CoE member states have notified their intention to derogate from certain ECHR provisions in order to tackle the outbreak. This briefing explains the functioning of Article of the 15 ECHR and its application to the current health emergency. Furthermore, it lists some fundamental rights and freedoms that have been affected by the coronavirus emergency measures, while also showcasing how Member States have sought to reconcile measures to protect public health with the fundamental rights principles enshrined in the ordinary framework of the ECHR. The briefing also stresses that it is key to protect the human rights of vulnerable persons, including during the implementation of recovery strategies. In this Briefing • Derogations under the European Convention of Human Rights in times of emergency • Impact of the anti-coronavirus measures on individual rights and freedoms under the ECHR • Safeguarding the human rights of vulnerable groups • Putting human rights at the centre of the recovery strategies EPRS | European Parliamentary Research Service Author: Anja Radjenovic with Gianna Eckert Members' Research Service PE 652.085 – September 2020 EN EPRS | European Parliamentary Research Service Derogations under the European Convention of Human Rights in times of emergency In response to the coronavirus pandemic, 10 Council of Europe (CoE) member states, including a few EU Member The European Convention of States, have derogated from certain human rights Human Rights (ECHR) protected under the European Convention on Human The ECHR is an international treaty drafted Rights (ECHR). in 1950 within the framework of the The particular role of Article 15 of the ECHR Council of Europe (CoE). So far, all 47 CoE member states have ratified the ECHR. EU The ECHR constitutes one of the key instruments to Member States are all CoE members and safeguard fundamental rights across Europe. Within this parties to the ECHR, and the EU is also set to framework, Article 15 of the ECHR deals with human accede to it, but the accession has proven rights protection during emergency situations and forms more legally complex than initially thought. an important cornerstone of the Treaty. At core a classic The ECHR established the European Court derogation clause, Article 15 of the ECHR allows CoE of Human Rights (ECtHR) as the member states to temporarily deviate from certain adjudicatory body overseeing member convention rules in order to address 'war or other public states' compliance with the convention. A emergency'. Provided a series of strictly defined peculiarity of the ECtHR body is that conditions are met, member states may lawfully adopt individuals may bring complaints against any one of the CoE member states before it measures that under normal circumstances may have for violations of their rights enshrined in the amounted to a breach of the ECHR. ECHR. Article 15 of the ECHR thus widens the margin of action for governments in situations of distress and allows for an effective resolution of the crisis at hand. On the other hand, Article 15 imposes clear boundaries on governmental action (i.e. by stipulating a list of non-derogable rights) and thus guarantees respect for the fundamental rights and values under the ECHR, especially in times of severe crisis. In this way, Article 15 plays a crucial role in upholding human rights during an emergency and facilitates the delicate balancing act between the need for urgent action and the protection of core rights throughout periods of emergency. Article 15 ECHR (Derogation in times of emergency) 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed. Conditions that need to be present for activation of Article 15 ECHR The activation of Article 15 is subject to a strict set of conditions designed to prevent abuse and thus unlawful restrictions of human rights in times of distress. Firstly, Article 15(1) stipulates that member states may only resort to derogations when faced with particularly serious emergencies, notably in times of war or other public emergency apt to threaten the life of a nation. The latter requirement sets a high threshold and, according to the ECtHR Guide on Article 15, refers to 'an exceptional situation of crisis or emergency which affects the whole 2 Upholding human rights in Europe during the pandemic population and constitutes a threat to the organised life of the community of which the State is composed' (Lawless v. Ireland). Secondly, the ECtHR has ruled that Article 15 implies that the situation of emergency must be actual or imminent and that the crisis or danger should reveal a degree of 'exceptionality' rendering measures normally permissible inadequate to restore public order, health and safety (the 'Greek case'). If these requirements are satisfied, derogations are permissible in principle. However, Article 15 does not grant unlimited powers to states with regard to their emergency responses. On the contrary, it imposes boundaries on the nature and the scope of the envisaged derogation. In this regard, Article 15(1) stipulates that states may only take derogating measures to the 'extent strictly required by the exigencies of the situation'. Whether a state measure has exceeded these requirements and thus amounts to an unlawful derogation may be challenged before the ECtHR. The ECtHR then considers various factors, such as the nature and the importance of the rights affected by the derogation (Brannigan and McBride v. the United Kingdom), the duration of the measure, whether the need for derogation is kept under regular review (Brannigan and McBride v. the United Kingdom), whether the measures are subject to safeguards (Ireland v. the United Kingdom) and whether the measures are a genuine response to the respective emergency (Alparslan Altan v. Turkey). On multiple occasions in the past, the ECtHR has stressed that 'the existence of a public emergency must not serve as a pretext for limiting freedom of political debate' and that even in a state of emergency member states 'must bear in mind that any measures taken should seek to protect the democratic order from the threats to it, and every effort must be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness' (Mehmet Hasan Altan v. Turkey; Şahin Alpay v. Turkey). These elements will be assessed in consideration of the 'conditions and circumstances reigning when [the measures] were originally taken and subsequently applied', as clarified in the case law (Ireland v. the United Kingdom). Additionally, a country's emergency measures, although deviating from ECHR standards, must not be in violation of other international laws and treaties. Derogations from human rights standards under the ECHR should not serve as a way to circumvent other international norms; hence why Article 15(1) states that national emergency measures must not reveal any inconsistencies with a country's 'other obligations under international law'. Finally, Article 15(2) defines a list of absolute rights that may never be subject to any derogation (non-derogable rights). As such, Article 2 (right to life), Article 3 (prohibition of torture and other forms of ill-treatment), Article 4(1) (prohibition of slavery or servitude) and Article 7 (no punishment without law), which enshrines essential elements of the rule of law principle, are protected from derogations and must be observed by states at all times. Formal requirements for the activation of Article 15 of the ECHR A derogation under Article 15 of the ECHR requires prior notification. As set out in Article 15(3), state authorities must notify their intention to derogate to the CoE Secretary General and provide detailed information about the specific measures that will be taken as well as their purpose. In absence of any notification, Article 15 does not apply to the adopted measures and a member state may not rely on the derogation clause, as clarified by the Court (Cyprus v. Turkey). The rationale behind the notification system is to increase transparency and accountability.